Cite as 26 I&N Dec. 197 (BIA 2013) Interim Decision #3792
Matter of Konan Waldo DOUGLAS, Respondent
Decided October 17, 2013
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A child who has satisfied the statutory conditions of former section 321(a) of the
Immigration and Nationality Act, 8 U.S.C. § 1432(a) (2000), before the age of 18 years
has acquired United States citizenship, regardless of whether the naturalized parent
acquired legal custody of the child before or after the naturalization. Matter of Baires,
24 I&N Dec. 467 (BIA 2008), followed. Jordon v. Attorney General of U.S., 424 F.3d
320 (3d Cir. 2005), not followed.
FOR RESPONDENT: Wayne Sachs, Esquire, Philadelphia, Pennsylvania
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jeffrey T. Bubier, Senior
BEFORE: Board Panel: COLE, PAULEY, and GREER, Board Members.
PAULEY, Board Member:
In a decision dated January 15, 2013, an Immigration Judge determined
that the respondent did not derive United States citizenship through his
mother, incorporating by reference an October 15, 2012, interim decision.
The Immigration Judge also sustained the charge of removability against
the respondent and ordered him removed to Jamaica. The respondent has
appealed, challenging only the denial of his claim to derivative citizenship.
The respondent’s appeal will be sustained and the proceedings will be
I. FACTUAL AND PROCEDURAL HISTORY
This case is governed by former section 321(a) of the Immigration and
Nationality Act, 8 U.S.C. § 1432(a) (2000), which was in effect at the time
relevant to the respondent’s case.1
That section described the conditions
Former section 321 was repealed and replaced by section 320 of the Act, 8 U.S.C.
§ 1431 (2012), pursuant to sections 101 and 103 of the Child Citizenship Act of 2000,
Pub. L. No. 106-395, 114 Stat. 1631–32 (enacted Oct. 30, 2000), which applies to
(continued . . .)Cite as 26 I&N Dec. 197 (BIA 2013) Interim Decision #3792
under which a child born outside the United States of alien parents
automatically acquired citizenship.
The facts in this case are not in dispute. The record reflects that the
respondent was born in Jamaica on January 29, 1976, to his married
parents, each of whom was a native and citizen of Jamaica. On
December 14, 1981, the respondent entered the United States as a lawful
permanent resident. The respondent’s mother was naturalized on April 13,
1988. His parents were divorced on July 25, 1990. The respondent became
18 years old in 1994.
Former section 321(a) of the Act provided that citizenship was
automatically acquired by a child born outside the United States of alien
parents under the following conditions:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents is
(3) The naturalization of the parent having legal custody of the child when
there has been a legal separation of the parents or the naturalization of the mother
if the child was born out of wedlock and the paternity of the child has not been
established by legitimation; and if
(4) Such naturalization takes place while such child is under the age of
eighteen years; and
(5) Such child is residing in the United States pursuant to a lawful admission
for permanent residence at the time of the naturalization of the parent last
naturalized under clause (1) of this subsection, or the parent naturalized under
clause (2) or (3) of the subsection, or thereafter begins to reside permanently in the
United States while under the age of eighteen years.
(Emphasis added.) We have held that a child who has satisfied the
statutory conditions of former section 321(a) of the Act before the age of
18 years has acquired United States citizenship, regardless of whether the
naturalized parent acquired legal custody of the child before or after the
naturalization. Matter of Baires, 24 I&N Dec. 467 (BIA 2008). Under our
analysis, therefore, the respondent has met the requirements for
United States citizenship.
However, according to case law of the United States Court of Appeals
for the Third Circuit issued prior to our decision, “a child seeking to
establish derivative citizenship under § 1432(a) must prove . . . ‘that his
individuals who were under the age of 18 on February 27, 2001, its effective date.
See generally Matter of Guzman-Gomez, 24 I&N Dec. 824 (BIA 2009).Cite as 26 I&N Dec. 197 (BIA 2013) Interim Decision #3792
[parent] was naturalized after a legal separation from his [other parent].’”
Jordon v. Att’y Gen. of U.S., 424 F.3d 320, 330 (3d Cir. 2005) (alterations
in original) (quoting Bagot v. Ashcroft, 398 F.3d 252, 257 (3d Cir. 2005)).
The respondent nevertheless argues that Matter of Baires should be
followed in the Third Circuit. We agree.
In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984), the Supreme Court held that where a statute is silent
or ambiguous, an agency’s interpretation should be given deference if it is
based on a permissible construction of the statute. The Court has also
emphasized that the Chevron principle of deference must be applied to an
agency’s interpretation of ambiguous statutory provisions, even where a
court has previously issued a contrary decision and believes that its
construction is the better one, provided that the agency’s interpretation is
reasonable. National Cable Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967, 982 (2005) (“A court’s prior judicial construction of a statute
trumps an agency construction otherwise entitled to Chevron deference
only if the prior court decision holds that its construction follows from the
unambiguous terms of the statute and thus leaves no room for agency
The Third Circuit, in concluding that “legal separation must occur prior
to naturalization” for a child to derive citizenship in Jordon v. Attorney
General of U.S., 424 F.3d at 330, simply reiterated the language it had used
in Bagot. However, the court in Bagot did not address the question before
us now because the sequence of the legal separation of the parents and the
naturalization of one parent was not at issue. In fact, the court stated that
the case turned only on whether the father had “legal custody” of the child.
Bagot v. Ashcroft, 398 F.3d at 257.
Before addressing that key issue of legal custody, the court summarized
the requirements of former section 321(a)(3) of the Act, noting that the
child must first establish that “his father was naturalized after a legal
separation from his mother,” a fact that had been conceded. Id. (emphasis
added). Thus, the court was apparently paraphrasing the statute by using
the word “after” as a synonym for the word “when.” However, it engaged
in no analysis of the statute’s use of that term in deciding the case.
The intent of Congress is presumed to be expressed by the ordinary
meaning of the words used. INS v. Cardoza-Fonseca, 480 U.S. 421,
431 (1987); Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). The
word “when” is not defined in the Act and has no “plain meaning” in
legal lexicon. According to Merriam-Webster’s Collegiate Dictionary
1341 (10th ed. 2004), “when” has various meanings in different contexts,Cite as 26 I&N Dec. 197 (BIA 2013) Interim Decision #3792
including “at or during which time,” “while,” “if,” and “although.” It can
be used as an adverb indicating time or a conjunction indicating condition.
The Third Circuit’s judicial construction of former section 321(a)(3) in
Bagot was not concerned with the temporal occurrence of the legal custody
of the child, and there is no indication that it interpreted the statute to be
unambiguous. See In re Price, 370 F.3d 362, 369 (3d Cir. 2004) (stating
that “a provision is ambiguous when, despite a studied examination of the
statutory context, the natural reading of a provision remains elusive”);
see also Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (“The
plainness or ambiguity of statutory language is determined by reference to
the language itself, the specific context in which that language is used, and
the broader context of the statute as a whole.”); Marshak v. Treadwell, 240
F.3d 184, 192 (3d Cir. 2001). Having considered that the word “when” can
have a number of different possible meanings, we conclude that the use of
that term in former section 321(a)(3) is ambiguous. See Nat’l R.R.
Passenger Corp. v. Atchinson Topeka & Santa Fe Ry. Co., 470 U.S. 451,
473 n.27 (1985) (stating that words are “ambiguous” if they are “reasonably
susceptible of different interpretations”); Dobrek v. Phelan, 419 F.3d 259,
264 (3d Cir. 2005); see also Negusie v. Holder, 555 U.S. 511, 518 (2009)
(finding a provision ambiguous where it was not “clear that Congress had
an intention on the precise question at issue”).
As to the reasonableness of our construction of former section 321(a)(3)
in Matter of Baires, we continue to consider our original analysis to be
sound. In Baires we relied on a decision of the Commissioner of the
former Immigration and Naturalization Service, a policy statement in a
Department of State Passport Bulletin, and an interpretation of the statute in
the Adjudicator’s Field Manual of the U.S. Citizenship and Immigration
Services. See Matter of Baires, 24 I&N Dec. at 469–70. Each of those
sources supported the conclusion that a child may derive citizenship if the
parent is awarded legal custody of the child after that parent’s
naturalization, as long as both actions occur before the child reaches the age
of 18 years.
In reviewing this issue, we have also now examined the legislative
history of the statutory provision. As originally enacted, the statute stated
That a child born without the United States of alien parents shall be deemed a
citizen of the United States by virtue of the naturalization of or resumption of
American citizenship by the parent: Provided, That such naturalization or
resumption takes place during the minority of such child: And provided further,
That the citizenship of such minor child shall begin at the time such minor child
begins to reside permanently in the United States.Cite as 26 I&N Dec. 197 (BIA 2013) Interim Decision #3792
Act of Mar. 2, 1907, Pub. L. No. 59-193, § 5, 34 Stat. 1228, 1229. Thus,
the statute had no legal custody requirement and only provided that the
naturalization must have occurred while the child was a minor. Following
its significant amendment in 1940, this provision was in the same statutory
format and contained essentially the same requirements as former section
321(a)(3) of the Act. See Nationality Act of 1940, Pub. L. No. 76-853,
§ 314, 54 Stat. 1137, 1145–46. It was revised again in 1952 and 1978, but
those amendments are not pertinent to the part of the statute we consider
here. See Act of Oct. 5, 1978, Pub. L. No. 95-417, § 5, 92 Stat. 917, 918;
Immigration and Nationality Act, Pub. L. No. 82-414, § 321(a), 66 Stat.
163, 245 (1952). Our review of the legislative history of each of these
enactments does not reveal anything relevant to the question now before us.
Furthermore, aside from the Third Circuit’s opinions, we are aware of no
case law that is contrary to our holding in Matter of Baires.
In summary, we have found nothing in the legislative history of
former section 321(a)(3) of the Act or the case law interpreting it that is
inconsistent with or counsels against our conclusion in Matter of Baires.
We continue to believe that Congress’ intent was to accord a child
United States citizenship, regardless of whether the naturalized parent
acquired legal custody of the child before or after the naturalization, so long
as the statutory conditions were satisfied before the child reached the age of
Since we find that former section 321(a)(3) of the Act is ambiguous and
that our interpretation of it is reasonable, we respectfully decline to follow
the Third Circuit’s case law to the contrary and will apply our holding in
Matter of Baires to cases arising in that circuit. See National Cable
Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. at 982; see also INS
v. Aguirre-Aguirre, 526 U.S. 415, 424–25 (1999). We note that “this result
will promote national unity” in the application of the statute. Matter of
M-H-, 26 I&N Dec. 46, 49 (BIA 2012).
In light of our disposition, we need not address the other arguments
raised on appeal. Accordingly, the respondent’s appeal will be sustained
and the proceedings will be terminated.
ORDER: The appeal is sustained and the removal proceedings are
Cite as 26 I&N Dec. 197 (BIA 2013) Interim Decision #3792